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Federal judge seeks to ban immigration arrests nationwide

The Immigration Reform Law Institute (IRLI) has filed a friend-of-the court brief challenging an attempt by San Francisco and Santa Clara County, a Bay Area county containing most of California's Silicon Valley, to induce a federal judge to ban arrests for immigration law violations throughout the United States.

San Francisco was among the first in the nation to publicly oppose enforcement of civil immigration laws within city limits, enacting a so-called sanctuary ordinance more than 30 years ago. The City Council has expanded the reach of its ordinance over time, so that in 2017 law enforcement officers and most city employees face job sanctions and lawsuits if they cooperate with the federal government in locating or detaining any but the most dangerous criminal aliens.

Soon after his inauguration in February 2017, President Donald Trump issued an executive order directing federal agencies to actively seek out and remove all illegal aliens. Carrying out the President's orders, Attorney General Jeff Sessions announced that for 2018 nearly a quarter-billion dollars in federal grants to local police departments would require the police departments to certify that they are cooperating with the Department of Homeland Security in detaining illegal aliens that federal immigration authorities have identified for removal from the United States.

San Francisco refused to do so, and filed a lawsuit claiming that the certification would make its employees liable for civil rights lawsuits. Joined by other Bay Area cities and counties, San Francisco sued Attorney General Sessions. San Francisco claimed that by arresting aliens wanted for deportation by Immigration and Customs Enforcement (ICE) without a federal criminal warrant, its officers would lack probable cause to make arrests, and thus be liable for violating the Fourth Amendment rights of these aliens. The City claims it would thus be unconstitutional for the U.S. Department of Justice to cut the city out of the largest program of federal aid to police.

San Francisco won a first round in the case, when Judge William Orrick held that the Trump Administration could not withhold federal funds unrelated to law enforcement. The City then amended its complaint to focus on the remaining funds, known as JAG grants.

"San Francisco can't hide behind a bogus Fourth Amendment theory while it proudly adopts criminal aliens as honorary citizens and then demands a royal reward from the American taxpayers," responded IRLI Executive Director and General Counsel Dale L. Wilcox.

"Our brief reminds the court that the touchstone of the Fourth Amendment's protection of citizens from illegal arrests is reasonableness" added Wilcox. "San Francisco City Attorney Denis Herrera knows full well that removal of illegal aliens has been a civil action since the earliest days of the Republic. He knows full well that the Supreme Court has approved arrests for violations of civil laws in dozens of situations, from health safety and environmental violations to matters involving foreign affairs, including military deserters, terrorists, and most importantly, aliens subject to removal for violating immigration laws. The Fourth Amendment applies to all law enforcement officers. If it were unconstitutional, civil detainers would be unconstitutional for ICE itself, and legal authority for the President to control the nation's borders would collapse."

"A lot more is at stake in this fight than federal subsidies, as costly as they may be," noted IRLI Director of Litigation Christopher Hajec. "Thousands of convictions could be overturned if a federal judge were to rule that an arresting officer can't rely on information from an investigating officer from another agency, in this case ICE. The ability of this country to enforce its immigration laws as a practical matter would be at an end. The Constitution doesn't permit Attorney Herrera to stand in the courthouse door handcuffing his own officers. The Supreme Court has always affirmed the reasonableness of immigration detainers, and I doubt that will change two centuries of search and seizure law so that San Francisco can pander to local activists."

The case is City and County of San Francisco and County of Santa Clara v. Donald J. Trump et al., case numbers 3:17-cv-00574-WHO, 3:17-cv-00485-WHO and 3:17-cv-01535-WHO, in the United States District Court for the Northern District of California.